WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
File No.: C48925/09
Date: 2016-03-03
Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Parties
In the Matter of: The Child and Family Services Act, R.S.O. 1990, c. 11
And In the Matter of: G.M., born […], 2014
Between:
Children's Aid Society of Toronto — Applicant
- and -
J.M. (mother) and B.P. (father) — Respondents
Before: Justice Robert J. Spence
Trial Heard on: 16-19 and 22-25 February 2016
Reasons Released on: 3 March 2016
Counsel:
- Ms. Martha Chamberlain — for the applicant society
- Mr. Evan Chang — for the respondent mother
- Mr. Matthew Price — for the respondent father
Introduction
[1] The Children's Aid Society of Toronto ("society") has brought an amended protection application ("application") in respect of the young child, G.M., born […] 2014. That application seeks a finding that G.M. is in need of protection, pursuant to sections 37(2)(b) and 37(2)(g) of the Child and Family Services Act ("Act"), and an order that the child be made a Crown Ward, without access, for the purpose of adoption.
[2] Each of the mother and the father have filed separate Answers and Plans of Care ("Answer") in which they oppose the finding in need of protection, as well as the disposition sought by the society.
[3] The father's Answer seeks a return of G.M. to his care with supervised access to the mother. In the alternative, he seeks a supervision order with himself, on reasonable terms and conditions.
[4] The mother's Answer seeks a return of G.M. to both parents. In the alternative, she seeks a supervision order with both parents, on reasonable terms and conditions.
Background
[5] The society first became involved with mother in 2007 when a referral was made by Rosalie Hall, where the mother was residing at that time with her baby daughter, Ky.M. Rosalie Hall reported to the society its concerns about the mother's ability to care for her baby as she had missed baby doctor's appointments; additionally she had been using marijuana.
[6] It appears that the society did not then begin a court proceeding as the mother moved to Markham and the society's file was transferred to York Region Children's Aid Society.
[7] In 2009 the society initiated a protection application in respect of mother's two older children, seeking a finding that both children were in need of protection pursuant to section 37(2)(b) of the Act, and an order for six months society wardship.
[8] It is unclear what occurred subsequently; but a review of the Endorsements record indicates that on December 1, 2010, the case management judge marked the application withdrawn.
[9] It seems that the matter of Ky.M. and Kh.M. came before the court at this location again in December 2012. On December 14, 2012, the late Justice Geraldine Waldman made a temporary without prejudice order placing both children in the care of the society. The file was then transferred to Justice Carolyn Jones as the new case management judge.
[10] On January 23, 2014, Justice Jones endorsed the record:
Respondent Mother has agreed to undergo a psychiatric assessment.
[11] It appears that until about that time, the father of one or both of the children, who had been named as C.J., was now identified as B.P., the father in this proceeding, that is, the biological father of G.M.
[12] On April 9, 2014, Justice Jones ordered production of the police records of the father, "aka C.J., aka E.J.".
[13] Father was present at the court appearance of May 27, 2014. At that appearance, Justice Jones stated:
CAS has raised the issue of whether [father] is the biological father of the children. CAS states that they have requested that [father] submit to DNA testing to clarify this issue.
[14] Despite the society's request that father submit to a DNA test, father never did so.
[15] The father also attended court on June 16, 2014. At that appearance, Justice Jones endorsed:
[father] has filed an affidavit today deposing that he meets the definition of a "parent" in the [Act], although he maintains he is not the biological father of either child.
[16] On that same court appearance, Justice Jones endorsed [my emphasis]:
The father was served with CAS amended Child Protection Application on February 18, 2014 . . . he has not filed an Answer and Plan of Care and does not intend to do so.
[17] Accordingly, Justice Jones noted father in default.
[18] The court subsequently set a date for a summary judgment motion to be brought by the society seeking both a finding in need of protection for the two children, as well as an order for Crown Wardship.
[19] That motion was argued before Justice Debra Paulseth on November 26, 2014. Her Honour found both children to be in need of protection pursuant to sections 37(2)(b) and 37(2)(g) of the Act. She ordered the children to be made Crown Wards.
Justice Paulseth's Findings in Her Reasons on the Summary Judgment Motion
[20] I highlight some of Justice Paulseth's findings:
The children being left home alone, Ky.M. saying she's feeling unsafe, Kh.M. talking about microwaving his toy car, it being set on fire.
Paulseth J. refers to the assault charge and conviction against the father in respect of a male tenant using the basement of the mother's home.
Mother breached a "contract" where she had agreed not to allow the father to be in the home.
The children were referring to the father as their "dad", and also as "Boris", and they talked about his being in the home, contrary to the mother's agreement to keep him out of the home.
Mother has a difficult time struggling with the children, particularly Kh.M. who has special needs, is aggressive and out of control.
Mother was displaying anger around the children and she needed help to deal with her feelings and how to set realistic expectations for the children.
At one point mother's frustration reached the point where she threatened to kill the children's service worker. She subsequently apologized.
Mother was displaying ongoing signs of trauma, difficulty controlling her emotions, and she was allowing things to get quickly out of control. The society felt she required further therapy.
While mother initially made some progress, she was unable to sustain that progress.
Around July 22, 2013 mother moved out of her then-housing while the children were at home on an access visit, but mother didn't tell anyone about the move.
And, in what Justice Paulseth characterizes as a "very bizarre move", the father "brought the children back where they were to be picked up at the end of a visit and put them over the fence into the backyard".
The mother was subsequently arrested and charged with theft and a number of other property offences.
The father was found guilty in criminal court of breach of a no-contact order with mother and the children.
The children are now referring to father as "Uncle J.".
Mother goes to Tropicana for counselling but her counselling falls off, re-starts and falls off again. Justice Paulseth finds this to be "very consistent with someone who experiences trauma . . . consistent but it is not good for the children."
Mother is found to have engaged in force feeding the children, after they tell her that they are full.
Kh.M. is out of control at school, crawling around on the floor pretending to be a dog.
Kh.M. is unpredictable, he gets so hyper he vomits, often becoming angry and kicking his feet or swinging his arms. He runs off to hide in the bathroom. He urinates on the floor. He punches the lunch room supervisor in the groin.
Mother agrees to have a psychological assessment for herself and then she refuses. Later she has a psychiatric assessment.
Mother's access visits are deteriorating. Mother is yelling at Kh.M., she is threatening to hit him during a visit, and she insists she has a right to discipline him however she wants.
In her psychiatric assessment with Dr. Persad, mother discusses her relationship with father for over 10 years. She says she was forced to live in housing with a drug dealer, the person who the father assaulted.
Mother talks about her transiency, her moving around, her anger, her short fuse.
The psychiatrist says that while mother does not have a major depressive disorder, she certainly has what may well be called an adjustment disorder with a depressed mood. Counselling will be helpful, her lack of permanent residence, her situational crisis is a barrier to moving on to counselling.
Mother is isolated, and the person she chooses for support is father, who is not a good support.
Father does not come forward and cooperate with the normal assessment of someone who wants to parent children, come to visits form part of a plan.
Both were told that the new baby [G.M.] would be apprehended, and again they refused any assistance from the society. They want privacy.
Mother gave birth to G.M. on September […], 2014. She had no prenatal care, still isolated, had just moved into an apartment but had not been able to maintain stable accommodation.
Father does not see the need to follow up with the society and go through the necessary police record checks and do what he is advised several times would be necessary if he and the mother are planning together.
In response to the society's efforts to engage mother in the Therapeutic Access Program, and despite all of mother's demonstrated deficits with parenting, mother simply says: "I was forced to participate in TAP".
The mother has consistently prioritized her relationship with the father over her relationship with the children.
Although many supports have been offered to her, mother is isolated and she has chosen the father as her support person, a person who has a "fairly extensive criminal record both for violent behaviour and for breaches of court orders".
The father is controlling of the mother. This is an issue of domestic violence. As Justice Paulseth notes: "there is a reason why domestic violence is now being added to several of the statutes relating to children . . . . children do not do well around that kind of behaviour".
The merits of the plan proposed by the mother "has no foundation, no teeth, no sustainability, no evidence of being able to be put into action compared to the society's plan in finding permanent homes for them.
There is no evidence that the access is beneficial and meaningful, so no access can be ordered.
[21] It is with that backdrop that the trial comes before me with the society seeking the orders which I referred to at the outset.
Finding in Need of Protection
[22] As I stated earlier, the society seeks a finding under each of sections 37(2)(b) and 37(2)(g) of the Act. Those two sections state:
Child in need of protection
(2) A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) [(i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development] resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
[23] Much of the basis for a finding in need of protection arises from the past parenting of Ky.M. and Kh.M. The apprehension of G.M. and the findings of Justice Paulseth are closely connected in time, Her Honour's findings coming only two months after the apprehension. Those findings included:
The harsh and angry manner mother displayed in her dealings with Ky.M. and Kh.M.;
Leaving the two children home alone;
Mother's inability to cope with the children's needs, especially the special needs of Kh.M.;
Mother allowing the father to be in the home with her contrary to a no-contact order, and becoming pregnant with G.M. during the course of that order;
Mother engaging in criminal activity, including theft and other property offences;
Mother's transiency;
Mother's diagnosed adjustment disorder which presents as a barrier to her moving forward;
Mother's lack of understanding how the society was attempting to assist her through its Therapeutic Access Program ("TAP") by stating "I was forced to participate in TAP;
Mother allowing herself to be controlled by the father; and
Mother not obtaining pre-natal care for G.M.
[24] Much of what these findings were about, and Justice Paulseth's expressed concerns, came into even greater focus during the course of this trial.
Prenatal Care for G.M.
[25] I turn first to the issue of prenatal care for G.M. Both of mother's two older children were born by way of a C-section which, in itself is a more invasive procedure than a vaginal birth. In her testimony, mother acknowledged that once she became pregnant with G.M., she knew that she would have to have another C-section, something which required advance planning for safety reasons.
[26] And yet, when mother checked into the Markham Stouffville Hospital to give birth to G.M., the hospital was unable to find any records of mother having attended a physician for prenatal care.
[27] Mother testified about a nurse coming to see her a few times during her pregnancy, at home, for private prenatal sessions. However, there is no independent evidence of this having occurred and the court finds it highly unlikely that somehow mother managed to find a way to arrange private, one-on-one prenatal classes with a nurse, without going through OHIP, particularly given her chronic financial constraints, as well as her historically demonstrated disorganization and inappropriate child-related planning.
[28] In any event, what is not disputed is that mother did not once attend the care of a physician following her initial ultrasound. What did mother have to say about all this?
[29] In her affidavit sworn November 13, 2014, she deposed:
I did not in the end need prenatal care [because the baby turned out to be healthy at birth] . . . . I did my best to prevent risk.
[30] She said so long as she ate healthy she didn't see the need for any prenatal care. And – tellingly – she testified: "it went smooth anyways".
[31] This last statement is the expression of a person who, despite having made a serious mistake, refuses to acknowledge it when she is confronted with it. She refuses to say, in effect, "I messed up, now I understand where I went wrong and this is what I've done to ensure it will never happen again".
[32] The latter statement would be expected from a person who has insight. The former statement is from a person without insight. Insight, and the lack of it is a recurring theme in this case, as my reasons will reveal.
[33] Following G.M.'s birth her doctor at Markham Stouffville Hospital reviewed with mother the medical problems arising from that birth, and stated [my emphasis]:
With regard to future children, I have advised [mother] that she has had extensive adhesions in her abdomen and that I would not encourage her to have another child as a repeat C-section with the extent of these adhesions could be quite dangerous.
[34] Within about only 8 months of that medical warning, mother once again became pregnant. At trial, mother denied that the doctor had made the foregoing statement to her.
[35] With her current pregnancy, mother did not attend at an obstetrician's office until November 2015, by which time she was already 5 months pregnant. By the eighth month of her pregnancy she had seen an obstetrician only 3 times.
[36] Mother acknowledged that she has been diagnosed with gestational diabetes; and she was aware that because of this diagnosis it was necessary for her to see a specialist. And yet, for her current pregnancy, she missed 3 specialist appointments, all of which had to be rebooked. She saw the specialist for the first time on February 22nd, when this trial was in its fifth day.
[37] None of this was new to mother. She knew of the diagnosis; she knew she had to be closely monitored; she acknowledged missing repeated appointments; she acknowledged the need to have her pregnancy closely monitored; and yet, in spite of this she failed to take the necessary steps to ensure that she was under the proper care of a doctor in a timely manner.
[38] All of this speaks to the quality of mother's judgment and her problem-solving challenges. Do those difficulties stem from cognitive impairments, or from mental health impairments, or simply from a refusal to accept and follow the advice of professional experts? At the end of the day, neither this court, nor anyone else can possibly know for certain. However, whatever the genesis is, it matters not in terms of the risk of harm to the child.
Mother's Credibility
[39] I listened carefully to the mother's evidence at trial. I heard what she had to say when presented with the generally negative evidence of others about her and about her actions relevant to the issues before the court. And unfortunately, in her attempt to buttress herself in the eyes of the court, she lost most of her credibility and any slight confidence that the court might otherwise have had in her ability to effectively and safely parent her child.
[40] I do not intend to go through every single piece of evidence which undermined her credibility. I will, instead, provide a few examples.
[41] When mother checked into the hospital to give birth to G.M., she went there knowing that in all likelihood the society was intending to apprehend G.M. When the society worker had previously met with the parents on September 3, 2014, she told them unequivocally that was the society's intention. The father responded that the society would have to bring the police and that they would need a warrant.
[42] Mother said the society worker lied about this information and that while "I had a feeling" the society would apprehend, she didn't know for sure. Why is this important?
[43] When mother checked into the hospital, the hospital was very clear that the mother gave a false name. The mother denied this. She said she had no reason to give a false name.
[44] Instead she concocted a wholly implausible story at trial saying that she had forgot her wallet at home and that she had to verbally give the hospital her name, which the hospital then must have mis-spelled, which is why it could not initially find any records for the mother. Instead of returning home to get her health card, or have a friend retrieve her wallet for her, she offered to pay cash to the hospital for the delivery procedure. By the time the mother had gone through all these machinations, the hospital finally figured out the mother's real identity. The mother said this problem would never have arisen had the hospital not mis-spelled her name at the outset.
[45] The fact is that the hospital did not make an error. The mother did not simply forget her wallet. The mother lied to the hospital as part of her subterfuge, in order to keep the society out of G.M.'s life.
[46] Mother has a fairly lengthy history of police involvement. In October 2010, she was stopped by store security at Winners who suspected her of stealing from the store. Mother said the store security people "misunderstood" what had happened. Mother's two children were with her at the time.
[47] In August 2011, mother was at Dollarama with both of her children, when she walked out of the store not having paid for something. She said that she forgot because she was in a rush. She attributed this to a "misunderstanding".
[48] In June 2013 mother was at a Footlocker store when she walked out of the store with a shoe she had not paid for. She said she was just going to show it to a friend outside the store. Store security found another person's identity in her purse. Mother testified the store dropped the charge because it was a "misunderstanding".
[49] In March 2014, mother walked out of a Walmart store not having paid for a bicycle. Mother said the store made the mistake by not properly scanning the item. Once again, mother attributed this to a "misunderstanding".
[50] In June 2014, mother took a jacket from the Bay without paying for it.
[51] In November 2014 mother was charged with fraudulently attempting to obtain and redeem gift cards at a Walmart store. She attributed this to a "misunderstanding".
[52] Mother's take on these incidents: "there's a lot of misunderstandings happening in my life".
[53] Mother was the victim of domestic assault at the hands of the father on at least two occasions, for which the father was criminally charged and convicted.
[54] On December 20, 2013 father pled guilty to charges of assaulting the mother on June 14, 2012 and again on December 5, 2012.
[55] With respect to the June 14th assault, the following is an extract from the facts read in by the Crown in support of the guilty plea [my emphasis]:
An independent citizen called 9-1-1, alerting police to an assault . . . the caller described an adult male assaulting an adult female, he was striking her repeatedly about the head with his hand while she screamed. The male and female were also in the company of two young children who were present for the assault. . . . [officers arrived and found male and the female and the two children] tucked down behind a parked motor vehicle . . . . [the female identified herself as the mother] and denied any assault but admitted that there had been yelling. . . . Officers spoken with the three-year-old son who advised, "daddy was hitting mommy a lot" Officers spoke with the accused who falsely identified himself as C.J. . . . . Soon after this [father] fled on foot. He was pursued by officers who observed him running into the apartment building situated at . . . as they thought he may be carrying a weapon. Further investigated with the female, she then advised there was pushing between the two of them. Independent witness confirmed her observations of the male repeatedly striking the female then he was charged.
[56] When the mother was asked at trial to confirm these events she replied:
that's not a correct statement, he was actually wiping my tears.
[57] Mother's response again underscores her lack of credibility in this proceeding. Leaving aside for the moment that father acknowledged the truth of these facts at the time of his plea, mother's testimony flies in the face of: an independent witness who reported the events to the police, the child's statement that "daddy was hitting mommy a lot", and the parents own conduct after the assault was reported, including hiding down behind a motor vehicle to avoid police detection, and father running away from the scene, and even the mother's own later statement to the police that there was "pushing" between them.
[58] Father also pled guilty on the same day to assaulting mother on December 5, 2012. The following is an extract from the facts read in by the Crown in support of the guilty plea [my emphasis]:
On Wednesday December 5th, Mr. J.M. was in the basement apartment sleeping when he was awoken by the accused. He proceeded to question him on what he was doing in his apartment. The accused became enraged and hit him repeatedly on his head. The accused then went upstairs and dragged [mother] down the stairs. He returned upstairs and retrieved a pitcher, a water pitcher to boil water and then he came back downstairs and struck victim two [J.M.] on his head. . . . The accused then returned to [mother] where he started stomping and kicking her. The accused then grabbed a can of chicken noodle soup and threw it at the victim . . . . [the police arrived and spoke with mother] who refused to provide a statement and was attempting to cover up her injuries suffered from the assault. . . . [mother] had cuts and bruises to her head and scratches on her neck.
[59] At trial, mother simply denied that this incident had occurred, including the existence of the bruises, cuts and scratches.
[60] Some of the notes from mother's probation officer were filed in evidence as business records. The "closing summary" notes dated November 30, 2015 is particularly informative to the court [my emphasis]:
The client was placed on 18 months' probation for the charge of possession of stolen property. The client's reporting habits were initially poor and she ended up missing her initial appointments with the writer and had re-offended by the time she eventually met with the writer for our first meeting. . . . The client was required to complete a shoplifting program which she did after a couple of failed attempts. . . . The client was also a victim of domestic abuse by her common-law partner who also reported to the Don Mills P&P office. . . it appears she still has many more personal issues to work on. It is the writer's belief that her main issue is not being able to accept responsibility for her own problems as she is very quick to try and blame others. The writer believes she still is at risk to reoffend . . .
[61] As my reasons reveal, these themes of mother's inability to accept responsibility and her propensity to blame others appeared repeatedly in this trial.
[62] The same probation officer recorded his contact with mother on December 4, 2014, part of which I extract as follows [my emphasis]:
She then went on to say how there was an "incident" and a "mix-up" at Walmart in which she was wrongfully accused of returning an item with a wrong receipt which resulted in her being charged with Fraud. The writer advised her how I found it interesting that she seemed to be so unlucky in repeatedly being involved in these mix ups that resulted in her being charged. I further made reference to her outstanding charges and how she also advised me that it was a mistake as well.
[63] These comments harken back to, and are entirely consistent with, mother's testimony at trial in which she characterized every such incident as a mix-up or a misunderstanding. Again, mother accepts no responsibility for her actions.
[64] And because her preferred approach is to deny, refute and accuse everyone else of lying, it is she herself who undermined her own credibility with the court.
[65] In November 2013, after she and the father were jointly charged with shoplifting, there was a mutual no-contact order. The mother intentionally breached this order, but at trial she characterized this as a misunderstanding on her part.
[66] In July 2013, in the midst of a child protection proceeding, she was enjoying a weekend overnight access visit with her children Kh.M. and Ky.M. However, during that weekend, the mother was packing up and making plans to move her residence, with her children in tow. The only problem was that she had not disclosed this intended move to the society.
[67] At trial she testified that she was not planning to abscond with the children and, instead, her intention was to first move and then tell the society about the move afterwards. She offered no explanation why she would not have advised the society beforehand. Instead, she blamed the society for coming to the conclusion that she was acting inappropriately.
[68] This is what happened next. Later the same day of the intended move, she was arrested at a Footlocker store for theft. It appears she may have been held in custody for a period of time, and she asked a friend, who she refers to as "Uncle J." to look after the children. Uncle J. did not return the children to the house. Instead, he deposited the children into the backyard of the house and then ran off without telling the society, leaving the children alone and unsupervised in the backyard.
[69] The children have often referred to Uncle J. as "daddy". They have also referred to father as "daddy". The society has long believed that Uncle J. and father are the same person. Understandably, the society asked mother to bring Uncle J. into the society offices so they could meet him and get a better understanding of who he is and how he fits into the overall family dynamic. However, mother refused or failed to make Uncle J. known to the society; and she has continued to deny that he and father are the same person.
[70] As I stated at the outset of this section of my reasons, my intention was only to provide a sampling of the evidence which has necessarily led the court to conclude that mother's credibility with this court is somewhere between minimal and non-existent.
Mother's Mental Health
[71] The court has a real concern about mother's mental health. From the time of her youth, mother has lived a life that can best be characterized as materially deprived and without emotional sustenance and enrichment.
[72] She left home because (mother says) she and her parents didn't see "eye to eye". There was always a lack of bus fare, lunch money for school, and a paucity of food in the fridge at home. She began working at age 15 years, part-time after school.
[73] When she left her parents' home she went into a shelter, where she remained for two years. Even though she had the opportunity to attend school while she was at the shelter she didn't show up for classes, describing herself as a "teen, hanging out in the wrong crowd".
[74] She shortly became pregnant with Ky.M. and moved with Ky.M. into a basement apartment. It appears that over the next 4-5 years she lived in about 7 different places. Except for one place on Varna where she lived for 3 years, she never managed to remain in any one place for more than a few months.
[75] In 2009, when she was 22 years old, she was caring for her two very young children. The worker from the society (which was then involved with her family) believed that mother was exhibiting signs of depression. The worker drove mother to Humber River Hospital, where she remained in the psychiatric ward for one week before being released.
[76] Although she denied it at trial, I accept as true, the society worker's evidence that mother told her that, for a period of time during her pregnancy with G.M., she was living in a tent. Mother attempted to characterize this as something akin to "Canada Day" celebrations.
[77] At some point in 2014, mother's family physician referred her to Dr. Persad, a psychiatrist at Markham Stouffville Hospital. Although Dr. Persad did testify at trial, I will begin by referring to portions of his two "consultation notes", the first dated June 27, 2014 [my emphasis]:
She acknowledges life is challenging . . . .her mood is at times sad . . . she stated that someone had mentioned that she might have a bipolar disorder because she has what she refers to as mood swings. When this was explored, she elaborated on the fact that she does not have sustained mood swings over time but does get very angry very quickly and has a "short fuse". She states she occasionally has thoughts about death or dying but does not have any thoughts of self-arm. . . . It is difficult at this time to completely assess the patient's insight and judgement. She seems overwhelmed by the social and financial difficulties that she is currently facing. . . . The diagnostic impression that is likely to apply to this lady is an adjustment disorder with a depressed mood. She does not appear to meet criteria for a major depressive disorder at this time and there is no indication for the need of antidepressants or for intensive psychiatric care. However, the patient said she is open to counselling and this might be helpful.
[78] Dr. Persad saw mother again on March 19, 2015. From his consultation note, I extract the following [my emphasis]:
She wanted to see me to request that I provide a letter so that she can have her three children back. She stated that the information I had provided is being used against her and that there seems to be an assumption that she still has post partum depression. . . . She believes she has superior parenting skills and has a desire to raise her children to be "leaders" in the community. . . . When an attempt was made to engage [mother] in a discussion of her need to demonstrate personal and life stability, she was dismissive . . . . mother does not believe she requires professional help to deal with either emotional or personality driven issues . . . . In summary, this 27 year old lady has had significant challenges, especially during her adolescent years. She has had one psychiatric admission for what seems to have been depression (post partum), has had three pregnancies, is currently on probation and may be diverted to the Mental Health Program for a second charge. She does not believe that her suitability or competence to care for her three children are in any way compromised . . . . At this time she does not display any overt evidence of Depression that was noted in June 2014. She is not considered a risk to herself or others. She also appears to be able to care for herself.
[79] At trial, Dr. Persad acknowledged that the only information he had about how mother was functioning was based on her own self-reporting. He had no contact with mother's probation officer; nor did he have the medical file from her family physician who had reported that mother might have had psychotic episodes.
[80] When Dr. Persad was asked whether mother ever acknowledged her own responsibility for her children being in the society's care, he responded that this subject was not a fruitful area for discussion, because mother stopped engaging at the point where she would have had to examine her own role in the apprehension of her children by the society.
[81] Dr. Persad also noted that mother was inclined to blame others for her own bad judgment in committing offences – another recurring theme in this trial.
[82] As noted throughout these reasons, there is repeated evidence of mother's lack of insight and her lack of understanding. It is important to mention a few other areas where this became evident in the trial.
[83] Mother attended at the summary judgment motion before Justice Paulseth. She was asked at this trial whether she listened to and understood Justice Paulseth's reasons for the Crown Wardship order of Ky.M. and Kh.M. She responded that it was only about an issue with "my partner" and that "my love [for my children] is unrealistic". She couldn't recall anything else.
[84] She said that although the court found she was unable to manage her child's Attention Deficit Disorder, she asserted "it has been proven that I can" . . . "that's about it" . . . "I know my children more than anybody in that [society] office".
[85] She was asked at trial whether she would parent G.M. in the same way that she had parented her two older children. She replied, "of course, unless I learn some new tricks to be better".
[86] And, in response to the question, what would you do different if she were given the opportunity to parent G.M., she replied she could not think of anything and, tellingly, that she would "reduplicate what I did with Kh.M. and Ky.M."
[87] She feels no need for the society to be involved in her life in any way, apart from providing some food vouchers. She has not found the society to be helpful when it comes to her parenting.
[88] It would be very easy to conclude that all of the foregoing is evidence of mother's complete intransigence, simply a stubborn unwillingness to concede anything whatsoever to the society, an outright refusal to acknowledge whatever her own role may have been in the parenting deficits which led to Justice Paulseth's Crown Wardship order.
[89] But the answer may be far more complicated than that. It may well be attributable to mother's mental health issues, her recognized likely personality disorder. Nevertheless, is the outcome for the children any different, whether the answer lies behind door A or door B? As I stated earlier, I think not.
[90] I conclude that the society has made out its case for a finding in need of protection based on a combination of:
The findings of fact contained in Justice Paulseth's summary judgment motion reasons;
The mother's complete lack of understanding why her older two children were apprehended and why the court ordered that they be made Crown Wards;
The mother's belief that there is nothing wrong with her parenting and that all three children should be returned to her care where they would grow and thrive;
The mother's insistence that if baby G.M. were returned to her care she would not parent them any differently than she parented Kh.M. and Ky.M.; and
Mother's refusal/unwillingness/inability to recognize that she has been the victim of domestic violence with a partner with whom she is still living, and with whom she intends to continue to live for the foreseeable future.
[91] To this I would add one further reason. Mother has no community supports whatsoever. No one came to court to testify that he or she could provide active and ongoing assistance to mother were she to be given the opportunity to parent G.M. Apart from the father, she is entirely isolated in the community. And of all the people she should not be looking to for support, father stands out as the leading candidate, as I will discuss later in these reasons.
Disposition
[92] Once the court makes a finding in need of protection, the court then must follow the statutory path set out in section 57 of the Act, in order to arrive at the appropriate disposition. Section 57 provides [my emphasis]:
Order where child in need of protection
57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:
Supervision order
1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Society wardship
2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.
Crown wardship
3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.
Consecutive orders of society wardship and supervision
4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).
Court to inquire
(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).
Less disruptive alternatives preferred
(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).
Community placement to be considered
(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).
[93] In making an order "in the child's best interests" the court must consider section 37(3) of the Act, which provides:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3).
[94] In considering the court's options under section 57, the court must also have regard to section 70 of the Act, which provides [my emphasis]:
Time limit
70. (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.
[95] Because G.M. has been in the society's care since birth, specifically, more than 17 months, his time in care has exceeded the 12-month statutory time limit set out in section 70(1)(a). Accordingly, the court cannot make an order under either section 57(1) 2 – society wardship – or section 57(1) 4 – consecutive orders of society wardship and supervision.
[96] The only two alternatives open to the court are to return the child to one or both of the parents pursuant to a supervision order, or make the child a Crown Ward.
[97] I now turn to the father as he is putting himself forward as the primary caregiver for G.M.
The Father
[98] To some extent the father came to court as a man of mystery and, unfortunately, he has exited this trial with a similar degree of opacity.
[99] As far back as I can recall presiding over Crown Wardship trials, parents' counsel have always spent some time at the beginning of examination in chief by creating a picture of the parent for the court – where you born; how long have you lived here; how many siblings do you have; tell us a bit about your education; perhaps a bit about your job history; your experience as a parent with other children; - all pretty basic information, and yet important for the court to know in order to start to develop a picture of just who this person is who is seeking to become the custodial caregiver/parent to his child.
[100] And yet, in this case there was none of that for the father.
[101] Far be it from the court to question the litigation tactics of any counsel. Perhaps there was a very good reason for keeping father's background, and a picture of who he is as a person and as a parent, hidden from the court. But I would have thought it obvious that omissions of this sort would leave the court metaphorically scratching its head.
[102] It wasn't until the society conducted its cross-examination of the father that it was revealed for the first time that father has an 18 year old son from a prior relationship. It turns out that this young man lives with his grandmother, and he has no real relationship with the father. Nor have they had a relationship for some years.
[103] Why? When did that relationship come to an end? What led to its termination? How much time did they spend together when the child was younger? How was the father involved in that child's life? What did he learn about parenting with that child? Were there any issues of abuse or neglect? Was there emotional harm inflicted by the father, perhaps contributing to that severed relationship?
[104] These are just some of the questions which are relevant to helping the court gain an understanding of who this father is, and what kind of parenting he might be able to provide were G.M. to be placed in his care.
[105] Again, perhaps from the father's perspective these questions were better left unanswered. Possibly the father would argue that even if problems did exist in his relationship with his son, that was then, and this is now. His son is 18 years old and G.M. is a toddler. And so, because of this – the father might argue - it would be irrelevant for the court to be asking these sorts of questions and to be speculating about something which may or may not be an issue.
[106] But from the court's perspective, those gaping holes in the evidence which go directly to father's parenting ability, are significant red flags.
Father and His Parenting of Ky.M. and Kh.M.
[107] As I noted earlier in these reasons, the society had asked father to take a DNA test to ascertain whether he was the biological parent to Ky.M. and Kh.M. Father refused. Nevertheless, on June 15, 2014 he did swear an affidavit, handwritten, and filed with the court on the same day, in which he deposed [my emphasis]:
During the twelve months before the society's application I demonstrated a settled intention to treat Ky.M. and Kh.M. as my children by providing financial support and child care most days of each week. . . . . I am not proposing a Plan of Care . . . . .
[108] And then, on July 10, 2014, father swore another affidavit "to permit me to attend visits with [G.M., together with mother] at the society offices." In that affidavit, he deposed [my emphasis]:
[mother and I] have been together as a couple since 2007 . . . . I have had virtually daily contact with [Ky.M. and Kh.M.] since they were born. They see me as their father. I do all activities associated with being a father, taking them to school, daycare, feeding, doctors appointments, changing diapers, recreational events, and the children socialised with my family including my sister, mother, father, brothers. . . . I have always supported [mother] in taking care of the children . . . . I was the one who enrolled the children in French immersion prior to their apprehension . . . . Kh.M. and Ky.M. always listened to me when I am with them. I never have to repeat myself twice in order to get them to listen. They have followed my kind instructions since birth. When the children do something wrong, I tell them what is wrong and I show them the proper or correct thing to do.
[109] Regardless whether father is the biological father of Kh.M. and Ky.M., he makes it quite clear that he acted as a father to both of them in every respect. He saw himself as their father "since birth", and they saw him as their father, based on the extensive involvement father had in their daily lives.
[110] The question that arises from all of this is why father did not put forward a Plan of Care for his two children, children who he had lived with since their birth – […], 2007 and […], 2008, respectively?
[111] In a not dissimilar way, this question relates back to the question I asked earlier about father's 18 year old son, about father's relationship with his son, why it ended, and what role did father play in all of that.
[112] When the society specifically asked father at trial why he decided not to file a Plan of Care for the two older children, father responded that he didn't want the "distraction" for baby G.M. His priority was G.M., and the other two children don't need him as much as G.M.
[113] That was the extent of father's response about why he walked out on the lives of Ky.M. and Kh.M.
[114] Father's response makes little sense to the court. It is not even clear what father meant by that response. But what it suggests to the court is possibly one or more of the following:
I didn't do a particularly good job raising Kh.M. and Ky.M. so it's time to get them out of my life entirely and just focus on my own, biological child;
Ky.M. and Kh.M. had problems and challenges which were far too overwhelming for me to cope with;
Those two children are a lost cause so I'd like to try to start over again and become an effective parent with a baby; or
If I can disassociate myself sufficiently from Ky.M. and Kh.M. the society and the court will focus only on my interaction with G.M. in its assessment of my parenting abilities. In other words, I can start my parenting life afresh, as a blank slate, beginning with the birth of baby G.M.
[115] It appears to the court that father may have taken what he felt was a calculated gambit in terms of best positioning himself to succeed with G.M., at the expense of Kh.M. and Ky.M. That gambit was, in effect, a parenting re-boot. When the blue screen of death appears on the computer and there is no way to fix the problem, simply re-boot the computer and start all over again.
Father and G.M.
[116] Lest it appear that all is relentlessly negative in terms of father's parenting ability, it is important to point out that father did participate in access with G.M. over an extended period of time. On the positive side, he did begin visiting with G.M. in October 2014, and he continued to visit with G.M. at the society's offices up to and including this trial.
[117] On the negative side, of the 121 possible visits that the society made available to father, he attended 66 of those visits – barely half of those allotted. I will come back to those missed visits later in these reasons.
[118] When father did attend visits, the society had many positive observations of those visits. Among those positive observations, a fair summary would be:
Father had good basic skills;
There was no concern about his general care of G.M.;
The access visits generally went well;
He often came to visits well prepared and with an understanding of how to interact appropriately with G.M.;
Father appeared to be loving in his interaction with G.M.; and
Father was able to read and respond to many of G.M.'s cues.
[119] These positive attributes are important and are a necessary part of any effective parenting. However, assessing overall parenting ability requires more than this.
[120] An important consideration in assessing a person's competence to parent, especially their competence to parent a toddler, is that person's level of commitment. In this particular case, what stands out is that although father did reasonably well in many of his interactions with G.M., he missed close to 50% of his visits.
[121] The court initially ordered 2 visits per week for the parents and then subsequently increased the visits to 3 times weekly, for 90 minutes each. So at its maximum, the parents were only being allowed 4.5 hours per week to visit with G.M.
[122] Because G.M. was a young baby at the time the visits commenced (and is only now 17 months old), it was very important for the parents to maximize their contact with G.M., both for the benefit of G.M. as well as to demonstrate to the society their necessary high level of commitment, in terms of their ability to be fulltime parents.
[123] Mother managed to attend about two-thirds of her visits and, as I noted, father managed to attend barely half. And during the months of February and March 2015, father did not attend a single visit.
[124] Father was asked, both in examination-in-chief as well as cross-examination for an explanation for his frequent missed visits. Here are some of his responses:
Specifically in response to his missed visits from October 2014 to June 2015: father said he was having "discussions with the society" and "we weren't in sync";
For the month of June 2015, he said he was sick for the missed visits;
From July 2015 to September 2015, he was attending various classes and programs;
For November 2015 – no explanation was provided for missing 6 visits;
For December 2015 – the only explanation for missing 7 visits was because of "other business we have conducted in the family";
For January 2016 – no explanation was provided for the 5 missed visits;
For February 2016 – "I can't recall right now", and "only possible reason" would be because of "business endeavours"; and, finally
When the society pointed out that he was not engaged in any "business endeavours" and that the reality was that he had attended barely more than 50% of his visits, father replied that visiting G.M. on those occasions was the "best he could do".
[125] In my view, the foregoing speaks volumes in terms of father's level of commitment to be a fulltime parent to this very young child.
Father's Criminal History
[126] Father has a criminal history, a sampling of which includes the following:
2004 – fail to stop at the scene of an accident – fined $500 + 8 days in pre-trial custody + 1 year probation;
2004 – impaired driving - $800 fine + 2 year driving prohibition
2004 – obstruct peace officer - $400 fine
2005 – fail to comply with recognizance and fail to attend court – 14 days in jail time served on both counts
2002 – impaired driving – withdrawn
2004 – assault with a weapon – dismissed
2005 – fail to comply recognizance – withdrawn
[127] In the extensive police records filed by the society there were numerous other contacts with police which resulted in charges, some of which led to convictions and others did not.
[128] More recently, as noted earlier in these reasons, father pled guilty on December 20, 2013 to two counts of assaulting mother. Even though father was asked by the trial judge more than once whether he accepted as true the allegations underpinning the charges, and despite father's insistence to the trial judge that the allegations were true, at this trial, he resiled entirely from that earlier acknowledgment. In short, he denies assaulting the mother – ever.
[129] He was also convicted of assaulting J.M. At this trial he more or less admitted the underlying facts supporting that guilty plea.
[130] The father was also convicted on the same date of two counts of failing to comply with a recognizance, including prohibited contact with the mother.
[131] On the same date, father was also convicted of theft, specifically, that he and mother had stolen property from Winners Department Store.
[132] As to his prohibited contact with the mother, which he acknowledged disobeying, he said that he did not see mother on a "regular basis", instead "we crossed paths".
[133] At this trial he said he lied to the criminal court and pled guilty because he just wanted to get out of custody where he had already served about 43 days in jail, so that he could pay his rent and get back to his job.
[134] However, his probation officer, Ms. Dempsey questioned him about the nature of his employment as part of her probation duties. Initially father insisted that he was working for a company associated with Rogers, but when she pressed him for proof of that employment, he eventually admitted that he was not working any longer and that he was considering returning to school.
[135] The evidence from Ms. Dempsey sheds some further light on the father's character in the context of his criminal convictions. She testified that he reported in a friendly and personable manner, but that he would often forget appointments, even though Ms. Dempsey would provide him each time with a reporting card.
[136] She would ask him basic questions about where he was residing and he would respond with a "long and drawn out response" which Ms. Dempsey found to be evasive.
[137] A similar problem arose when she tried to discuss his employment, when it became clear to her that father was again being evasive. At one point she had to caution him that if he continued to be untruthful, she would have to involve the police.
[138] One of his probation conditions required him to participate in the PAR program. Ms. Dempsey referred him to the John Howard Society which, in turn, reported that father was discharged from the program for missing too many sessions.
[139] He eventually re-enrolled in the PAR program and did complete it. However, some of the comments from the Program Completion Report are revealing [my emphasis]:
He did not present as accepting any abusive or violent behaviours, on his part, toward the victim. In addition he seemed to have some difficulties with acknowledging any responsibility without minimizing his behaviours.
He did not demonstrate an ability to focus on his own behaviours; rather, he tended to continually go off on tangents and had to be frequently redirected back to the topics being discussed in group.
Attendance unsatisfactory
He did not participate in the group dialogues in any meaningful manner. He often left the meeting room to use the washroom or to use the cooler. In fact he left the meeting room more often than other clients. He was spoken to about this behaviour.
The concern for this client is that he had not seemed to take the programme seriously and he presents as continuing to be in denial and minimizing his behaviours.
We recommend that [father] seek out and attend any other counselling, or support groups that can be of assistance in helping him deal with his complete lack of responsibility on many fronts (including a lack of responsibility for any controlling and abusive behaviours on his part) and to continue working on his own personal growth.
[140] When Ms. Dempsey met with the mother to discuss the nature of her relationship with the father, she said they had been together for 10 years, and that her children may be his children, but she was not certain. Later she told Ms. Dempsey that she was expecting [G.M.] in September and was not sure if father is the biological father.
[141] When, on January 7, 2014, Ms. Dempsey discussed the nature of his relationship with the mother, he referred to the mother as an "acquaintance". He stated to her that the mother was a "former girlfriend" and they had "recently become reacquainted".
[142] In the view of this court, the father's characterization of his relationship with the mother, as expressed to Ms. Dempsey, comes close to a complete fabrication. Apart from all of the third-party evidence, it contradicts entirely the father's own sworn evidence in his affidavits, previously referred to in these reasons.
Society Workers' Observations of Father Are Consistent with Other Evidence
[143] I find it unnecessary to break this down on a witness-by-witness basis. Instead, some of the observations made by the society workers, which are not only internally consistent (that is, workers consistent with other workers), but consistent with third party evidence as well, include:
Father asserting to the society that he has no understanding why the society was involved with G.M.;
Denying any violence between the mother and himself;
Acting aggressively in the society gym while a worker was attempting to engage with him, including yelling at a worker;
Aggressive behaviour toward a society worker necessitating intervention by the society security guard;
March 19, 2015, society sends letter to father cancelling all his Thursday access visits for not having attended any of those Thursday visits, despite having been warned about this by the society on January 26, 2015;
On May 11, 2015 he tells a worker that his Human Rights are being violated by the society's insistence that he attend access visits in a timely way. He insisted the worker act professionally, and he rambled in a way that made it difficult for the worker to follow;
A worker observed that father's refusal to deny paternity of his older children, caused them needless pain and upset. The worker's perception was that father's motivation for doing so was to solidify his position seeking to have G.M. returned to his care.
Another worker commented on the father's tendency to become agitated during discussions with the society, and on occasion she observed him to be doing so while he was carrying G.M. in his arms;
Another worker observed that the parents had difficulty focusing on concrete plans for G.M., noting that "the conversation goes around and around in circles and [they] are unable to move forward past their insistence that G.M. should never have been apprehended in the first place";
Workers noted father's "anger, controlling behaviour and unpredictability"; and
A almost complete refusal to work cooperatively with the society to address the protection concerns, or even to recognize the existence of those concerns.
[144] The father's anger and hostility toward the various society workers was a running theme in this trial. His inability to focus on conversations, to explain in clear language how he was planning for G.M., and to become transparent about his own past, were additional themes.
[145] The society's lead social worker testified that the parents were repeatedly asked by society workers to be very specific regarding their plans to care for G.M. However, the father in particular was either unable or unwilling answer specific questions that the society repeatedly asked. Instead, he would keep returning to what was primary on his own agenda, namely, how could he get G.M. back into his care as quickly as possible.
[146] In the cross-examination of this worker, it was suggested that if the parents did not acknowledge and understand the society's concerns, perhaps the society had an obligation to make additional efforts to explain its concerns in a manner that the parents could understand.
[147] The difficulty with this position is twofold. First, there is no evidence that the society's concerns were expressed or explained in a manner that the parents were incapable of understanding.
[148] Second, on November 23, 2015 there was an all-parties' meeting which was attended not only by the society and the parents, but the parents' counsel as well. If the society said something during that meeting which the parents truly did not understand, they certainly could have had anything clarified through their own respective counsel. The parents have both been represented by their respective trial counsel since the inception of this proceeding.
[149] Once again, however, the parents demonstrated a clear and unequivocal unwillingness to listen to the society's expressed concerns. Instead, at that meeting the father simply reiterated his demand: "I want my boy to be returned to me immediately".
[150] The court is left with the sense that no matter how much the society tried to make the picture as clear as possible for the parents, the parents were simply not willing to listen to those concerns. It is little wonder, then, that the lead worker said (somewhat understatedly), "It can be difficult to have a clear and cogent discussion" with father.
[151] When asked at trial to be very specific about his plan for G.M., if G.M. were to be placed in his care, father said:
He would go to church every Saturday;
He would get G.M. into the pool on a regular basis;
He would arrange French immersion for G.M.;
His own routine would change because he would eat more, and probably nap more; and
The "wisest approach" is for the society to simply "give me the window" to prove to the society that he could parent.
[152] Perhaps more than anything else, it is these answers from the father at trial which underscores the society's position that no matter how much the workers talked, no matter how much the society tried to make the parents understand the protection concerns, the parents were simply having none of it. It was as though the parents were inside their own sealed-off silo, refusing to open the door to ideas that could possibly have assisted them.
[153] To be clear, in the court's view this case was not about the parents' (particularly the father's) inability to understand the protection concerns; rather, it was about the parents' single-minded disregard for those concerns.
[154] Father is opposed to any kind of supervision order, believing that informal assistance from time to time would be acceptable but not under a formal order – for example, "making accusations about my love life". The only thing he needs from the society are bus tokens.
[155] The society asked him what his views are of mother's parenting skills. This question was specifically intended to address the father's position that he, not the mother, should be the primary caregiver. This is some of what the father said (almost all of which runs directly contrary to the specific findings of Justice Paulseth):
Mother managed Ky.M. and Kh.M. well. He never saw her being harsh with those children.
He never saw mother as having unrealistic expectations of either of those children.
"I think she'd make a great mom as long as someone was there to observe her".
He is willing to be that support person.
Although he doesn't have concerns about her parenting, he is willing to supervise her just to satisfy the society.
She can become a bit tired when she is caring for the children, but apart from that, he doesn't see anything else that would cause him to be concerned about her parenting.
[156] When he was asked about the society's perception that he is a dominating force in the mother's life, the father responded, "in my life it's a regular thing for me to have to correct people". [my emphasis]
Conclusion
[157] As I noted earlier, the only options available to the court are a supervision order or an order for Crown Wardship.
[158] The evidence about both parents, including what the parents themselves had to say, makes it abundantly clear that a supervision order would be unworkable. Neither sees any deficits in his or her parenting. Neither has any insight or recognition that problems exist such that parental remediation is required. In the mother's case this is in spite of the various programs that she has taken, programs which, for some people, could provide an opportunity for learning and advancement. Unfortunately, whether due to cognitive issues, mental health issues, or something else unknown to the court, these programs seemed to have had little ameliorative impact on mother.
[159] In the father's case, his refusal to accede to any of the society's concerns, to acknowledge any deficits on his part, comes from what appears to be a very rigid personality. His belief system simply prevents him from accepting the need for any parental guidance and remediation. In the father's unyielding belief system, he knows best, and no one can tell him otherwise.
[160] Father's counsel urged me not to give any weight to the issue of father's unwillingness to parent Ky.M. and Kh.M. He argued that because those two children were not the father's biological children, the court should not take his lack of commitment into account in assessing father's commitment to parenting G.M.
[161] I reject that argument. Father's almost complete refusal to discuss his other 3 children and, in particular Ky.M. and Kh.M. and why he effectively abandoned them tells the court a great deal. The court cannot assess the father in a complete vacuum. Parenting assessment is a holistic process, and very much contextual.
[162] His extensive criminal/police involvement and, most alarmingly, his record for domestic violence against the mother are of considerable concern to the court. The evidence of his probation and parole officer about his refusal to accept responsibility, to minimize, to deny and to deflect blame, are all telltale signs of a person who has no insight. And without insight, there can be no remediation. Without remediation, the likelihood of repeat antisocial behaviour is significant.
[163] His lack of demonstrated commitment even to G.M. by failing to attend barely more than 50% of the access visits, informs the court of what would be in store for G.M. if father were to be a custodial caregiver.
[164] Even if none of these many and significant problems existed, father has demonstrated that he has almost no respect for the court, repeatedly being convicted of breaches of criminal court orders. And of course, the essence of a supervision order is the confidence that a court must have that the terms and conditions of the supervision order would be fully complied with the by the parent who is being supervised. The evidence in this case says otherwise. The father is, for all intents and purposes, ungovernable.
[165] Accordingly, the statutory path leads in one direction only, namely, the making of an order for Crown Wardship. Having regard to the provisions of section 57 of the Act, as well as to the best interest provisions set out at section 37(3) of the Act, the court cannot proceed in any other direction.
[166] It is my understanding – and this is not disputed – that the adopting parent would be the father's sister, the person who not only has the care of Ky.M. and Kh.M., but who is currently the kin-in-care caregiver of G.M. The effect of this order would be to have all three siblings living together.
Access to Crown Ward
[167] The remaining matter which I must address is Crown wardship with or without access. Section 59(2.1) of the Act provides [my emphasis]:
Access: Crown ward
(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).
[168] The court must be satisfied on both prongs of this test before it can make an access order. The court is not satisfied on either prong.
[169] The parents led no real evidence that the access was beneficial and meaningful to G.M. Mother missed a third of her visits; father missed almost 50% of his visits. Some of the visits were enjoyable and overwhelmingly positive. Other visits were disruptive and challenging. Without doubt, G.M. enjoyed a number of the visits. However, simply the enjoyment of visits is not sufficient to establish that the access is beneficial and meaningful.
[170] Two of the more recent cases which discuss this concept are Children's Aid Society of Sudbury and Manitoulin v. A.M.P., 2015 ONCJ 476 and Children's Aid Society of Niagara Region v. M.J., [2004] OJ no. 2872. Those cases consider at some length what is meant by "beneficial and meaningful". I see no need to go into the detail of those discussions here, other than to state that the concept of "beneficial and meaningful" is about far more than some successful access visits.
[171] Given this finding on the first prong of the test, I need not consider the second prong. Nevertheless, I will make the following comments. As I stated, the plan is for the father's sister to adopt G.M. The father's sister is proceeding with the plan to care for G.M. only on the basis of an adoption. She apparently knows her brother very well and she feels that only an adoption would be a sufficiently secure and stable outcome to ensure the absence of any further litigation over G.M.'s placement. She wants stability for G.M. and a freedom from litigation for herself.
[172] It is the view of this court that the sister has a pretty good idea of who her brother is and, accordingly, a good sense of the potential for disruption were G.M. to come into her care under a final order anything short of a Crown Wardship order. And it is for this reason as well, that the court cannot make an order for access by the parents, or either of them, to G.M. At some point in the future, if the sister decides it is appropriate and in the best interests of G.M. that some contact be arranged between G.M. and either of his biological parents, that will be the sister's decision to make, and her decision alone, free from any pressure or influence from these parents.
Orders
[173] For all of the foregoing, the court orders:
On an unopposed basis, the statutory findings in respect of G.M. are made in accordance with the details set out at page 3 of the Amended Protection Application;
On an opposed basis, the child G.M. is found to be in need of protection pursuant to sections 37(2)(b) and 37(2)(g) of the Act; and
On an opposed basis, the child G.M. is made a Crown Ward, without access, for the purpose of adoption.
Justice Robert J. Spence
March 3, 2016